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The Public Interest and the Unconstitutionality of Private Prosecutors John D University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 1994 The Public nI terest and the Unconstitutionality of Private Prosecutors John Bessler University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Constitutional Law Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation The ubP lic Interest and the Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511 (1994) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. §A§ LAWREVIEW VOLUME 47 NUMBER 3 drticles The Public Interest and the Unconstitutionality of Private Prosecutors John D. Bessler Are Ideas Within the Traditional Definition of Property?: A Jurisprudential Analysis Andrew Beckerman-Rodau Case :J.{£tes CJ0ent q)evelopments Electronic copy available at: http://ssrn.com/abstract=1753201 The Public Interest and the Unconstitutionality of Private ProsecutolJ's John D. Bessler* TABLE OF CONTENTS Introduction........................................... 511 1. History of Private and Public Prosecution. .. 515 II. Young v. United States ex rei. Vuitton et Fils S.A . ............................................. 521 III. Existing Statutes and Case Law. .. 529 A. Jurisdictions Allowing Private Prosecutors................................. 529 B. Jurisdictions Prohibiting Private Prosecutors .. .. 540 IV. Prosecutorial Ethics............................ 543 V. The Unconstitutionality of Private Prosecutors ..................................... 550 A. The Law of Due Process. .. 550 B. An Unbiased Judicial System and the Appearance of Evenhanded Justice. .. 553 C. The "Public Interest" ...................... , 558 D. Conviction Reliability and Prosecutorial Accountability ............................. , 566 E. From "Supervisory Authority" in Young to the Constitutional Preclusion of Private Prosecutors................................. 571 Conclusion. .. 597 INTRODUCTION In 1987, the United States Supreme Court held, in the exercise of its "supervisory authority," that a district court erred in appointing counsel for an interested party to prose­ cute a criminal contempt action. In Young v. United States '" Associate, Faegre & Benson, Minneapolis, Minnesota, 1991 • present; J.D. 1991, Indiana University School of Law at Bloomington; B.A. 1988, University of Minnesota at Minneapolis. 512 ARKANSAS LAW REVIEW [Vol. 47:511 ex rei. Vuitton et Fils S.A.,l the Supreme Court ruled that the appointment of counsel for an interested party created opportunities for conflicts of interest to arise and created at least an appearance of impropriety.2 Noting irreconcilable differences in the ethical obligations of public and private advocates, the Supreme Court-refusing to apply "harm­ less error" analysis-reversed the contempt convictions of several defendants.3 Notwithstanding the Supreme Court's pronouncement in Young, several jurisdictions in the United States still al­ low the use of privately retained prosecutors for interested parties.4 These prosecutors are usually employed by victims or their families (or by those interested in collateral civil lawsuits) to assist the district attorney in the criminal pro­ ceeding. Although private prosecutors are supposed to re­ main under the direction· and control of the public prosecutor, such prosecutors often play significant roles at trial or during pre-trial activities. At trial, for example, pri­ vate prosecutors often examine key witnesses, make objec­ tions, or conduct opening and closing arguments.5 1. 481 U.S. 787 (1987). 2. [d. at 807. 3. [d. at 813. For an analysis of the Young decision, see Terri L. Braswell, Comment, Criminal Procedure-Young v. United States ex rei. Vuitton et Fils S.A.: The Right to a Disinterested Prosecutor in a Federal Criminal Contempt Proceeding Arising from the Underlying Civil Litigation, 18 MEM. ST. U. L. REV. 143 (1987) [hereinafter Braswell]. 4. See infra notes 71-117 and accompanying text. Unless otherwise noted, the phrase "private prosecutor" will be used to mean a private prosecutor for an inter­ ested party. This article only addresses the constitutionality of private prosecutors for interested parties. The use of the term "private prosecutor" should not be con­ fused with state laws that specifically allow disinterested private attorneys to prose­ cute cases in the absence of a county attorney. See, e.g., MINN. STAT. § 388.09 (Supp. 1993); Keiver v. Koochiching County, 169 N.W. 254 (Minn. 1918) ("When there is no county attorney, the county board may employ any competent attorney to perform legal services for the county."). 5. See infra notes 76-89 and accompanying text. Notably, some state statutes specifically require public prosecutors to conduct certain trial activities. Compare TENN. CODE ANN. § 8-7-401 (1988) ("The district attorney general or his deputies [sic] shall make the final and concluding argument.") with State v. Bennett, 798 S.W.2d 783, 786 (Tenn. Crim. App. 1990) (Section 8-7-401 of the Tennessee Code "does not prohibit a private prosecutor from making the opening argument to the jury. Only the rebuttal, or last argument, must be made by the district attorney general or his assistant. "). 1994] PRIVATE PROSECUTORS 513 In general, the post-Young cases allowing the use of private prosecutors have either ignored the Young deci­ sion,6 distinguished Young as a "supervisory authority" case,7 or held that Young merely precludes private prosecu­ tors from taking complete or effective control of criminal prosecutions.8 One pending habeas corpus case is challeng­ ing the use of two private prosecutors, hired by a murder victim's son, where the death penalty was ultimately im­ posed.9 Because prosecutors have nearly unbridled discre- 6. See State v. Camacho, 406 S.E.2d 868, 871 (N.C. 1991) (no citation to Young); State v. Woodruff, 392 S.E.2d 434 (N.C. App. 1990), affd, 399 S.E.2d 114 (N.C. 1991) (per curiam) (same); State v. Bennett, 798 S.W.2d 783, 785·86 (Tenn. Crim. App. 1990) (same); State v. Dunbar, 566 A.2d 970 (Vt. 1989) (same); cf Dick v. Scroggy, 882 F.2d 192 (6th Cir. 1989) (no citation to Young in the majority opin­ ion); Hughes v. Bowers, 711 F. Supp. 1574, 1583 (N.D. Ga. 1989), affd, 896 F.2d 558 (11th Cir. 1990) (Without citing Young, the court held that "[t]he presence of a spe­ cial prosecutor hired by the family of the victim is not constitutionally improper per se. "); Kerns v. Wolverton, 381 S.E.2d 258, 262 (W. Va. 1989) (Without citing Young, the West Virginia Supreme Court stated in dicta that "this Court has countenanced the participation of a private prosecutor at trial."). 7. Dick v. Scroggy, 882 F.2d 192, 198 n.2 (6th CiT. 1989) (Celebrezze, J., con­ curring); New Jersey v. Imperiale, 773 F. Supp. 747, 752 (D. N.J. 1991); New Jersey v. Kinder, 701 F. Supp. 486, 490 & n.6 (D. N.J. 1988); Commonwealth v. Hubbard, 777 S.W.2d 882, 883 (Ky. 1989). See Sassower v. Sheriff of Westchester County, 824 F.2d 184, 191 (2d CiT. 1987) (Young distinguished on the ground that no pretrial investigation or other prosecutorial conduct was required in order to make a crimi­ nal contempt determination; a private party's motion for criminal contempt "simply concerns the routine New York State practice of bringing contempts to the attention of the court by motion," and the criminal contempt conviction was enforceable "be­ cause the court already had before it all the facts needed to establish Sassower's commission of the multiple contempts" [i.e., failure to make a required appear­ ance]); see also Ex parte Williams, 799 S.W.2d 304, 307 n.10 (Tex. Crim. App. 1990) (Noting that Young was decided pursuant to the Supreme Court's "supervisory pow­ ers," the court stated that "[w]e have found nothing in our rules of procedure or prior case law which requires that prosecution of criminal contempt arising out of Texas civil suits be deemed a separate proceeding from that suit, or be brought on behalf of the State."). It is well-established that Supreme Court decisions based on the Court's supervisory authority over federal courts are not binding on the states. Smith v. Phillips, 455 U.S. 209, 221 (1982). 8. Person v. Miller, 854 F.2d 656, 663 (4th CiT. 1988). 9. Joseph Stanley Faulder v. James Collins, Case No. 6:92-CV-755 (E.D. Tex.) (Brief in Support of Petitioner's Proposed Conclusions of Law, Jan. 1994; Peti­ tioner's Proposed Findings of Fact and Conclusions of Law, Jan. 1994) (copies on file with The Arkansas Law Review); see also Powers v. Hauck, 399 F.2d 322 (5th Cir. 1968) (approving the use of a private prosecutor where the death penalty was imposed). In Faulder, two private prosecutors were paid approximately $90,000 to prose­ cute the defendant. Although a public prosecutor was assigned to work on the case 514 ARKANSAS LAW REVIEW [Vol. 47:511 tion with respect to the crimin;ll process, this Article addresses the question of whether·the Supreme Court's de­ cision in Young merely foreshadows a constitutional preclu­ sion of private prosecutors for interested parties. In addressing this question, Part I of this Article dis­ cusses the history of private and public prosecution in the United States. The Supreme Court's decision in Young is the focus of Part II, while Part III discusses existing statu­ tory provisions and case law. In Part IV, the standards reg­ ulating prosecutorial ethics are outlined, with Part V analyzing the constitutionality of the use of private prosecu­ tors. Ultimately, this Article concludes that the use of pri­ vate prosecutors is unethical and violative of a defendant's constitutional rights. In particular, this Article asserts that the use of such prosecutors violates the due process guaran­ tee and creates, at the very least, an unacceptable appear­ ance of impropriety.
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